# Punit Yadav Revisionist v. State of U.P. & Anr

- **Citation:** (2021) 10 ILRA 581
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2021-09-13
- **Case number:** Criminal Revision No. 987 of 2021
- **Bench:** Rajeev Misra
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/punit-yadav-revisionist-v-state-of-u-p-anr-46380
- **Pages:** 35

## Headnote

Law
-
Code
of
Criminal
Procedure,
1973
-
Section
319
-
Revisionist
summoned
to
face the
trial-summoning
order
impugnedRevisionist
was
named
in
FIR-not
chargesheeted-complicity
of
Revisionist
in
crime
stands
established-he damaged teh car-eye
witness-two Pws deposed Revisionist's
pressence-summoning order legal.

Revision dismissed. (E-9)
List of Cases cited:

## Text

_Characters 0–39,952 of 118,736. This is a partial read: ask again with offset=39952 for what follows._

10 All. Punit Yadav Vs. State of U.P. & Anr.
581
below is directed to pass appropriate orders
on the application filed under Order 7 Rule
11(d)
of
C.P.C.
most
expeditiously,
preferably within a period of three months
from the date of presentation of a copy of
this order. It is made clear that the court
below shall pass an order on the application
for interim injunction only after order is
passed on the application filed under Order
7 Rule 11(d) of C.P.C.

14. The petition is allowed with the
aforesaid directions.
----------
(2021)10ILR A581
REVISIONAL JURISDICTION
CRIMINAL SIDE
DATED: ALLAHABAD 13.09.2021

BEFORE

THE HON'BLE RAJEEV MISRA, J

Criminal Revision No. 987 of 2021

Punit Yadav ...Revisionist
Versus
State of U.P. & Anr. ...Opposite Parties

Counsel for the Revisionist:
Sri Rajiv Lochan Shukla, Sri Abhishek
Narayan Pandey

Counsel for the Opposite Parties:
A.G.A., Sri Mool Chandra Maurya, Sri Anil
Srivastava (Senior Adv.)

Criminal
Law
-
Code
of
Criminal
Procedure,
1973
-
Section
319
-
Revisionist
summoned
to
face the
trial-summoning
order
impugnedRevisionist
was
named
in
FIR-not
chargesheeted-complicity
of
Revisionist
in
crime
stands
established-he damaged teh car-eye
witness-two Pws deposed Revisionist's
pressence-summoning order legal.

Revision dismissed. (E-9)
List of Cases cited:

1. Hardeep Singh Vs St. of Punj.& ors., (2014) 3
SCC 92,

2. S. Mohammed Ispahani Vs Yogendra Chandak
& ors., (2017) 16 SCC 226

3. Brijendra Singh & ors. Vs St. of Raj., (2017)
SCC 706.

4. Dharam Pal & ors. Vs St. of Har. & anr.,
(2014) 3 SCC 306 (Constitution Bench)

5. Hardeep Singh Vs St. of Punj. & ors., (2014)
3 SCC 92 (Constitution Bench)

6. Babubhai Bhimabhai Bokhiria & anr. Vs St.of
Guj. & ors., (2014) 5 SCC 568

7. Jogendra Yadav & ors. Vs St. of Bihar & anr.,
(2015) 9 SCc 244

8. Brijendra Singh & ors. Vs St.of Raj., (2017)
SCC 706

9. S Mohammed Ispahani Vs Yogendra Chandak
& ors., (2017) 16 SCC 226

10. Deepu @ Deepak Vs Sta. of M.P., (2019) 2
SCC 393

11. Dev Wati & ors. Vs St. of Har. & anr. (2019)
4 SCC 329

12. Periyasamai & ors. Vs S.Nallasamy, (2019) 4
SCC 342

13. Sunil Kumar Gupta & ors. Vs St. of U.P. &
ors., (2019) 4 SCC 556

14. Rajesh & ors. Vs St of Har, (2019) 6 SCC
368

15. Sukhpal Singh Khaira Vs St of Punj, (2019) 6
SCC 638

16. Mani Pushpak Joshi Vs St of Uttarakhand &
anr., (2019) 9 SCC 805

17. Sugreev Kumar Vs St of Punj & ors., (2019)
SCC Online Sc 390
582 INDIAN LAW REPORTS ALLAHABAD SERIES
18. Labhuji Amratji Thakor Vs St of Guj, (2019)
12 SCC 644

19. Shiv Prakash MMishra Vs St of U.P. & anr.,
(2019) 7 SCC 806

20. Sartaj Singh Vs St. of Har. & anr., (2021) 5
SCC 337

21. Manjeet Singh Vs St. of Har. & ors., 2021
SCC Online SC 632

22. Labhuji Amratji Thakor Vs St. of Guj.,
(2019) 12 SCC 644

(Delivered by Hon'ble Rajeev
Misra, J.)

1. Heard Mr. Rajiv Lochan Shukla,
learned
counsel
for
revisionist,
Mr.
Prashant Kumar, learned A.G.A. along with
Mr. P.K. Sahi, learned brief holder for State
and Mr. M.C. Maurya, learned counsel for
opposite party-2.

2. Perused the record.

3. This criminal revision has been
filed challenging order dated 15.2.2021,
passed by Second Additional District and
Sessions Judge, Kasganj, in Sessions Trial
No. 329 of 2018 (State Vs. Vineet Yadav
and Others), under sections 307, 427, 506
and 325 IPC, Police Station- Sidhpura,
District Kasganj, arising out of Case Crime
No. 150 of 2018, under sections 307, 427,
506 and 325 IPC, Police Station- Sidhpura,
District
Kasganj,
whereby
application
under section 319 Cr.P.C. filed by first
informant/opposite party-2 Rajesh Kumar
has been allowed. Consequently, applicant
has been summoned to face trial in above
mentioned case.

4. Record shows that in respect of an
incident, which is alleged to have occurred
on 5.7.2018, first informant/opposite party2 Rajesh Kumar lodged a prompt F.I.R.
dated 5.7.2018, which was registered as
Case Crime No. 0150 of 2018 under
sections 307, 427, 506 IPC, P.S. Sidhpura,
District Kasganj. In the aforesaid F.I.R., as
many as four persons namely, Vineet
Yadav, Khavendra, Pintu and Punit Yadav
have been nominated as named accused.

5. In brief prosecution story as
unfolded in F.I.R dated 5.7.2018, alleges
that five persons namely, Rajesh Kumar,
Sandeep, Om Prakash, Babu Ram and Ram
Chandra Gola were travelling in a car
having Registration No. DL1ZA7581 (Tata
Indigo) belonging to Ram Chandra Gola.
When the car reached at the culvert near
village Sunvai accused persons namely,
Vineet Yadav, Khavendra, Pintu and
Puneet Yadav came from the front and
damaged the vehicle by using Lathi and
Danda. It is also alleged that one of the
named accused, Vineet Yadav fired at Ram
Chandra Gola from behind on account of
which, he sustained gun-shot injury on his
head.

6. After registration of above
mentioned F.I.R., injured Raju Sakya, Ram
Chandra, Shekher and Sandeep were
medically examined. Their medico legal
reports are on record as Annexure-2 to the
affidavit collectively. Perusal of aforesaid
medical report goes to show that injured
Raju Sakya has sustained injury on his left
thumb, caused by blunt object, injured Ram
Chandra has sustained one lacerated wound
on his skull caused by fire arm, injured
Shekhar has sustained two contusions and
one abrasion, caused by hard and blunt
object, injured Om Prakash has sustained
traumatic swelling on lateral aspects of
right forearm caused by hard and blunt
object. Thereafter, Investigating Officer
proceeded with statutory investigation of
10 All. Punit Yadav Vs. State of U.P. & Anr.
583
concerned case crime number in terms of
Chapter XII Cr.P.C. During course of
investigation,
Investigating
Officer
examined
first
informant
and
other
witnesses,
who
have
supported
the
prosecution story, as unfolded in F.I.R. On
the basis of above, as well as other material
collected by Investigating Officer, during
course
of
investigation,
which
is
substantially adverse to named accused,
Investigating Officer opined to submit a
charge sheet. Accordingly, Investigating
Officer submitted charge sheet dated
15.9.2019, whereby and whereunder three
of the named accused namely, Vineet
Yadav, Khavendra and Pintu have been
charge sheeted under sections 307, 427,
506 and 325 IPC, whereas one named
accused, Punit Yadav, i.e., (applicant
herein) has been exculpated. Perusal of
charge sheet further goes to show that as
many as 17 prosecution witnesses have
been nominated therein.

7. After submission of above
mentioned charge sheet, cognizance was
taken upon same by concerned Magistrate.
Since offence complained of was triable by
court of Sessions, accordingly, concerned
Magistrate, committed the case to the Court
of Sessions. Resultantly, Sessions Trial No.
329 of 2018 (State Vs. Vineet Yadav and
Others), under sections 307, 427, 506 and
325 IPC, Police Station- Sidhpura, District
Kasganj, came to be registered.

8. Trial commenced. Charges were
framed against charge sheeted accused who
denied the same. Consequently, burden fell
upon prosecution to establish the charges
so framed by leading evidence.

9. In discharge of aforesaid burden,
prosecution adduced first informant, Rajesh
Kumar as P.W. 1. His statement-in-chief
and examination-in-chief were recorded.
After
statement-in-chief/examination-inchief of P.W.1 had been recorded, first
informant/opposite party-2, who is also
P.W.1, filed an application dated 2.3.2019,
in terms of Section 319 Cr.P.C., praying
therein, that since complicity of non charge
sheeted but named accused Puneet Yadav
is also established in the crime in question,
as per his testimony therefore, he be also
summoned under section 319 Cr.P.C. to
face trial in above mentioned case.

10. While aforesaid application was
pending,
statement-in-chief/examinationin-chief of P.W.2 Sandeep was also
recorded.

11. Application under section 319
Cr.P.C. filed by first informant/opposite
party-2 was opposed by charge sheeted
accused by filing objections to the same.
However, copy of objection so filed has not
been brought on record. Ultimately, court
below by means of order dated 5.2.2021,
allowed the application under section 319
Cr.P.C.
and
consequently,
summoned
revisionist Punit Yadav to face trial in
above mentioned criminal case.

12. Feeling aggrieved by above,
revisionist-
Punit
Yadav
has
now
approached this Court by means of present
criminal revision.

13. Mr. Rajiv Lochan Shukla, learned
counsel for revisionist submits that order
impugned in present criminal revision is
manifestly illegal and without jurisdiction.
Same is unsustainable in law and fact. It is
then contended by learned counsel for
revisionist that revisionist was nominated
as one of the named accused in F.I.R. dated
5.7.2018. However, during investigation,
no
such
material
was
gathered
by
584 INDIAN LAW REPORTS ALLAHABAD SERIES
Investigating Officer on the basis of which,
complicity of present applicant was found
to be established in the crime in question.
Resultantly, applicant has been exculpated
in the charge sheet dated 15.9.2018. He,
further, submits that Investigating Officer
of concerned case crime number has not yet
been examined by Court below. In such
circumstance, court below ought to have
deferred the disposal of application under
section
319
Cr.P.C.
filed
by
first
informant/opposite party-2, till statementin-chief of Investigating Officer was
recorded as he will be the best person to
demonstrate
as
to
under
what
circumstances,
complicity
of
present
applicant was not found to be established in
the crime in question. As court below has
pre-empted the disposal of application
under
Section
319
Cr.P.C.,
serious
prejudice has been caused to applicant. It is
lastly submitted that no cast iron case is
made out for summoning present applicant
as per testimonies of P.W.1 Rajesh Kumar
and P.W.2 Sandeep. Nothing new has been
stated by P.W.1 and P.W.2 in their
deposition before Court below than what
was stated in their statements under section
161 Cr.P.C. before Investigating Officer.
Impugned order passed by Court below is,
thus, in teeth of Constitution Bench
judgement in Hardeep Singh Vs. State of
Punjab and Others, (2014) 3 SCC 92, as
well as law laid down in S. Mohammed
Ispahani Vs. Yogendra Chandak and
Others, (2017) 16 SCC 226 and Brijendra
Singh and Others Vs. State of Rajasthan,
(2017) SCC 706. Court below has thus
failed
to
exercise
its
jurisdiction
"diligently" and has summoned revisionist
in
a
"casual
and
cavalier
manner",
inasmuch as, there is no "strong nor cogent
evidence" against revisionist, which is a
pre-condition for summoning a prospective
accused under Section 319 Cr.P.C.

14. On the cumulative strength of
above, Mr. Rajiv Lochan Shukla, learned
counsel
for
revisionist
vehemently
contends that present criminal revision is
liable to be allowed and impugned order be
set aside.

15. Per contra, learned A.G.A. has
opposed this criminal revision. Learned
A.G.A. contends that statement-in-chief of
P.W.1- Rajesh Kumar is alone material for
deciding the application under Section 319
Cr.P.C. as he is a prosecution witnesses of
fact,. as per law laid down by Constitution
Bench
in
Hardeep
Singh
(Supra).
However, in the present case, P.W.1 has also
been cross-examined. Apart from above,
P.W.2 has also deposed before court below.
His examination-in-chief has also been
recorded. No illegality has been committed
by court below in placing reliance upon
testimonies of P.W.1 and P.W.2, who have
been cross-examined. Statements of P.W.1
and P.W.2- thus falls in the realm of legal
evidence. Therefore court below has rightly
proceeded to pass order dated 21.01.2021 by
placing reliance upon same. No irregularity
or illegality has been committed by court
below in passing impugned order dated
21.01.2021. From perusal of testimonies of
P.W.1 and P.W.2 complicity of present
applicant in the crime in question is fully
established. P.W.1 and P.W.2 are eye
witnesses of the occurrence. P.W.2 is also an
injured witness. His testimony has to be held
to be more credible and reliable. As such
Court below has exercised its jurisdiction
"diligently" and not in a "casual and caviliar
manner". Applicant has been summoned on
the basis of "strong and cogent" evidence
that has emerged against him during course
of above mentioned sessions trial. It cannot
be said at this stage that "applicants cannot
be tried along with other accused" and
further that "if the evidence which has been
10 All. Punit Yadav Vs. State of U.P. & Anr.
585
recorded up to this stage goes unrebutted
would not lead to conviction of revisionist".
Police report submitted by Investigating
Officer is not conclusive proof of innocence
of revisionist. Even though, revisionist has
been exculpated by Investigating Officer,
same cannot be taken as a ground to urge
that revisionist cannot be subsequently
summoned to face trial. Revisionist will
have adequate opportunity to prove his
innocence before court below during course
of trial by adducing Investigating Officer as
a defence witness also. No attempt has been
made to draw a parallel between the
statements of P.W.1 and P.W.2 as recorded
under Section 161 Cr.P.C. and their
depositions made before court below. No
ground has been raised in the grounds of
revision that P.W.1 and P.W.2 have not
stated anything new in their depositions
before Court below than what was stated by
them in their statements under Section 161
Cr.P.C. On the aforesaid premise, it is, thus,
urged by learned A.G.A. that revisionist is
not entitled to any indulgence by this Court.
Consequently, present criminal revision is
liable to be dismissed.

16. Having heard learned counsel for
revisionist, learned A.G.A. for State and
upon perusal of record, this Court finds that
the issue, which arises for determination in
present criminal revision is: What are the
parameters for exercise of jurisdiction
under section 319 Cr.P.C As a corollary to
above, whether the order impugned is
within the established parameters or not.

17. Parameters regarding exercise of
jurisdiction by Courts under section 319
Cr.P.C. has been considered time and again
by Supreme Court. The chronology of same
is as under:

(i) Dharam Pal and Others Vs.
State of Haryana and Another, (2014) 3
SCC 306 (Constitution Bench)

(ii) Hardeep Singh Vs. State of
Punjab and Others, (2014) 3 SCC 92
(Constitution Bench)

(iii)
Babubhai
Bhimabhai
Bokhiria and Another Vs. State of
Gujarat and Others, (2014) 5 SCC 568

(iv) Jogendra yadav and Others
Vs. State of Bihar and Another, (2015) 9
SCc 244

(v) Brijendra Singh and Others
Vs. State of Rajasthan, (2017) SCC 706

(vi) S Mohammed Ispahani Vs.
Yogendra Chandak and Others, (2017)
16 SCC 226

(vii) Deepu @ Deepak Vs. State
of Madhya Pradesh, (2019) 2 SCC 393

(viii) Dev Wati and Others Vs.
State of Haryana and Another (2019) 4
SCC 329

(ix) Periyasamai and Others Vs.
S.Nallasamy, (2019) 4 SCC 342

(x) Sunil Kumar Gupta and
Others Vs. State of Uttar Pradesh and
Others, (2019) 4 SCC 556

(xi) Rajesh and Others Vs.
State of Haryana, (2019) 6 SCC 368

(xii) Sukhpal Singh Khaira Vs.
State of Punjab, (2019) 6 SCC 638

(xiii) Mani Pushpak Joshi Vs.
State of Uttarakhand and Another,
(2019) 9 SCC 805

(xiv) Sugreev Kumar Vs. State
of Punjab and Others, (2019) SCC
Online Sc 390

(xv) Labhuji Amratji Thakor
Vs. State of Gujarat, (2019) 12 SCC 644

(xvi) Shiv Prakash Mishra Vs.
State of Uttar Pradesh and Another,
(2019) 7 SCC 806

(xvii) Sartaj Singh Vs. State of
Haryana and Another, (2021) 5 SCC 337
586 INDIAN LAW REPORTS ALLAHABAD SERIES

(xviii) Manjeet Singh Vs. State
of Haryana and Others, 2021 SCC
Online SC 632

18. To begin with, a constitution
Bench of Supreme Court in Dharam Pal
(Supra) considered the provisions of
Sections 193, 190, 319, 209, 173(2) and
200 to 204 Cr.P.C. and held that Sessions
Judge has power to summon non charge
sheeted accused after the case has been
committed to Court of Sessions under
section 193 Cr.P.C and for this purpose
need not wait for evidence to be recorded
so that non charge sheeted accused could
be summoned under section 319 Cr.P.C.

19. Subsequently, in Hardeep Singh
(Supra), another constitution Bench of
Supreme Court considered the parameters
for exercise of jurisdiction under section
319 Cr.P.C. The Constitution Bench upon
consideration of various provisions of
Indian Evidence Act, Code of Criminal
Procedure as well as underlying principles
of Section 319 Cr.P.C. framed five
questions for defining the parameters for
exercising jurisdiction under Section 319
Cr.P.C. Thereafter, Court held as under in
paragraphs 4, 5, 6, 6.5, 7, 11, 55, 56, 57,
85, 92, 105, 106, 116, 117.1 to 117.6:

"4. Reference made in Dharam
Pal (Supra) came to be answered in
relation to the power of a Court of
Sessions to invoke Section 319 Cr.P.C. at
the stage of committal of the case to a
Court of Sessions. The said reference was
answered by the Constitution Bench in the
case of Dharam Pal & Ors. v. State of
Haryana & Anr., AIR 2013 SC 3018
[hereinafter called 'Dharam Pal (CB)'],
wherein it was held that a Court of
Sessions can with the aid of Section 193
Cr.P.C. proceed to array any other person
and summon him for being tried even if
the provisions of Section 319 Cr.P.C.
could not be pressed in service at the stage
of committal.

5.Thus, after the reference was
made by a three-Judge Bench in the
present case, the powers so far as the
Court of Sessions is concerned, to invoke
Section 319 Cr.P.C. at the stage of
committal, stood answered finally in the
aforesaid background.

6. On the consideration of the
submissions raised and in view of what
has been noted above, the following
questions are to be answered by this
Bench:

6.1 (i) What is the stage at which
power under Section 319 Cr.P.C. can be
exercised?

6.2
(ii)
Whether
the
word
"evidence" used in Section 319(1) Cr.P.C.
could only mean evidence tested by crossexamination or the court can exercise the
power under the said provision even on
the basis of the statement made in the
examination-in-chief
of
the
witness
concerned?\

6.3 (iii) Whether the word
"evidence" used in Section 319(1) Cr.P.C.
has been used in a comprehensive sense
and includes the evidence collected during
investigation or the word "evidence" is
limited to the evidence recorded during
trial?

6.4 (iv) What is the nature of the
satisfaction required to invoke the power
under Section 319 Cr.P.C. to arraign an
accused? Whether the power under
Section 319(1) Cr.P.C. can be exercised
only if the court is satisfied that the
accused summoned will in all likelihood
convicted?

6.5 (v) Does the power under
Section 319 Cr.P.C. extend to persons not
named in the FIR or named in the FIR
10 All. Punit Yadav Vs. State of U.P. & Anr.
587
but not charged or who have been
discharged?

7. In this reference what we are
primarily concerned with, is the stage at
which such powers can be invoked and,
secondly, the material on the basis
whereof the invoking of such powers can
be justified. To add as a corollary to the
same, thirdly, the manner in which such
power has to be exercised, also has to be
considered.

11. Section 319 Cr.P.C. as it
exists today, is quoted hereunder:

"319 Cr.P.C. -Power to proceed
against other persons appearing to be
guilty of offence:-

(1) Where, in the course of any
inquiry into, or trial of, an offence, it
appears from the evidence that any person
not being the accused has committed any
offence for which such person could be
tried together with the accused, the Court
may proceed against such person for the
offence which he appears to have
committed.

(2) Where such person is not
attending the Court, he may be arrested or
summoned, as the circumstances of the
case may require, for the purpose
aforesaid.

(3) Any person attending the
Court, although not under arrest or upon
a summons, may be detained by such
Court for the purpose of the inquiry into,
or trial of, the offence which he appears to
have committed.

(4) Where the Court proceeds
against any person under sub- section (1),
then-

(5) (a) the proceedings in respect
of such person shall be commenced
afresh, and the witnesses re-heard;

(b) subject to the provisions of
clause (a), the case may proceed as if such
person had been an accused person when
the Court took cognizance of the offence
upon which the inquiry or trial was
commenced."

55. Accordingly, we hold that the
court can exercise the power under
Section 319 Cr.P.C. only after the trial
proceeds
and
commences
with
the
recording of the evidence and also in
exceptional circumstances as explained
herein above.

56. There is yet another set of
provisions which form part of inquiry
relevant for the purposes of Section 319
Cr.P.C. i.e. provisions of Sections 200,
201, 202, etc. Cr.P.C. applicable in the
case of Complaint Cases. As has been
discussed herein, evidence means evidence
adduced before the court. Complaint
Cases is a distinct category of criminal
trial where some sort of evidence in the
strict legal sense of Section 3 of the
Evidence Act 1872, (hereinafter referred
to as the 'Evidence Act') comes before the
court. There does not seem to be any
restriction in the provisions of Section 319
Cr.P.C. so as to preclude such evidence as
coming before the court in Complaint
Cases even before charges have been
framed or the process has been issued.
But at that stage as there is no accused
before the Court, such evidence can be
used only to corroborate the evidence
recorded during the trial for the purpose
of Section 319 Cr.P.C., if so required.
What is essential for the purpose of the
section is that there should appear some
evidence against a person not proceeded
against and the stage of the proceedings is
irrelevant. Where the complainant is
circumspect in proceeding against several
persons, but the court is of the opinion
that there appears to be some evidence
pointing to the complicity of some other
persons as well, Section 319 Cr.P.C. acts
as an empowering provision enabling the
588 INDIAN LAW REPORTS ALLAHABAD SERIES
court/Magistrate to initiate proceedings
against such other persons. The purpose
of Section 319 Cr.P.C. is to do complete
justice and to ensure that persons who
ought to have been tried as well are also
tried. Therefore, there does not appear to
be any difficulty in invoking powers of
Section 319 Cr.P.C. at the stage of trial in
a complaint case when the evidence of the
complainant as well as his witnesses is
being recorded.

57. Thus, the application of the
provisions of Section 319 Cr.P.C., at the
stage of inquiry is to be understood in its
correct perspective. The power under
Section 319 Cr.P.C. can be exercised only
on the basis of the evidence adduced
before the court during a trial. So far as
its application during the course of
inquiry is concerned, it remains limited as
referred to hereinabove, adding a person
as an accused, whose name has been
mentioned in Column 2 of the charge
sheet or any other person who might be an
accomplice

85. In view of the discussion
made
and
the
conclusion
drawn
hereinabove, the answer to the aforesaid
question posed is that apart from evidence
recorded during trial, any material that
has been received by the court after
cognizance is taken and before the trial
commences, can be utilised only for
corroboration and to support the evidence
recorded by the court to invoke the power
under Section 319 Cr.P.C. The 'evidence'
is thus, limited to the evidence recorded
during trial.

92. Thus, in view of the above, we
hold that power under Section 319 Cr.P.C.
can be exercised at the stage of completion
of examination in chief and court does not
need to wait till the said evidence is tested on
cross-examination for it is the satisfaction of
the court which can be gathered from the
reasons recorded by the court, in respect of
complicity of some other person(s), not
facing the trial in the offence.

105. Power under Section 319
CrPC
is
a
discretionary
and
an
extraordinary power. It is to be exercised
sparingly and only in those cases where the
circumstances of the case so warrant. It is
not to be exercised because the Magistrate
or the Sessions Judge is of the opinion that
some other person may also be guilty of
committing that offence. Only where strong
and cogent evidence occurs against a person
from the evidence led before the court that
such power should be exercised and not in a
casual and cavalier manner.

106. Thus, we hold that though
only a prima facie case is to be established
from the evidence led before the court not
necessarily tested on the anvil of CrossExamination, it requires much stronger
evidence than mere probability of his
complicity. The test that has to be applied is
one which is more than prima facie case as
exercised at the time of framing of charge,
but short of satisfaction to an extent that the
evidence, if goes unrebutted, would lead to
conviction.
In
the
absence
of
such
satisfaction, the court should refrain from
exercising power under Section 319 Cr.P.C.
In Section 319 Cr.P.C. the purpose of
providing if 'it appears from the evidence
that any person not being the accused has
committed any offence' is clear from the
words "for which such person could be tried
together with the accused." The words used
are not 'for which such person could be
convicted'. There is, therefore, no scope for
the Court acting under Section 319 Cr.P.C.
to form any opinion as to the guilt of the
accused.

116. Thus, it is evident that
power under Section 319 Cr.P.C. can be
exercised against a person not subjected to
investigation, or a person placed in the
10 All. Punit Yadav Vs. State of U.P. & Anr.
589
Column 2 of the Charge-Sheet and
against whom cognizance had not been
taken, or a person who has been
discharged.
However,
concerning
a
person who has been discharged, no
proceedings can be commenced against
him directly under Section 319 Cr.P.C.
without taking recourse to provisions of
Section 300(5) read with Section 398
Cr.P.C.

117. We accordingly sum up our
conclusions as follows:

Questions (i) and (iii)

- What is the stage at which
power under Section 319 Cr.P.C. can be
exercised?

AND

- Whether the word "evidence"
used in Section 319(1) Cr.P.C. has been
used in a comprehensive sense and
includes the evidence collected during
investigation or the word "evidence" is
limited to the evidence recorded during
trial?

Answer

117.1. In Dharam Pal case, the
Constitution Bench has already held that
after committal, cognizance of an offence
can be taken against a person not named
as an accused but against whom materials
are available from the papers filed by the
police after completion of investigation.
Such cognizance can be taken under
Section 193 Cr.P.C. and the Sessions
Judge need not wait till 'evidence' under
Section 319 Cr.P.C. becomes available for
summoning an additional accused.

117.2.
Section
319
Cr.P.C.,
significantly, uses two expressions that
have to be taken note of i.e. (1) Inquiry (2)
Trial. As a trial commences after framing
of charge, an inquiry can only be
understood to be a pre-trial inquiry.
Inquiries under Sections 200, 201, 202
Cr.P.C.; and under Section 398 Cr.P.C.
are species of the inquiry contemplated by
Section 319 Cr.P.C. Materials coming
before the Court in course of such
enquiries can be used for corroboration of
the evidence recorded in the court after
the trial commences, for the exercise of
power under Section 319 Cr.P.C., and also
to add an accused whose name has been
shown in Column 2 of the charge-sheet.

117.3. In view of the above
position the word 'evidence' in Section
319 Cr.P.C. has to be broadly understood
and not literally i.e. as evidence brought
during a trial.

Question (ii)- Whether the word
"evidence" used in Section 319(1) Cr.P.C.
could only mean evidence tested by crossexamination or the court can exercise the
power under the said provision even on
the basis of the statement made in the
examination-in-chief
of
the
witness
concerned?

Answer

117.4. Considering the fact that
under Section 319 Cr.P.C. a person
against whom material is disclosed is only
summoned to face the trial and in such an
event under Section 319(4) Cr.P.C. the
proceeding against such person is to
commence from the stage of taking of
cognizance, the Court need not wait for
the evidence against the accused proposed
to be summoned to be tested by crossexamination.

Question (iv)- What is the nature
of the satisfaction required to invoke the
power under Section 319 Cr.P.C. to
arraign an accused? Whether the power
under Section 319 (1) Cr.P.C. can be
exercised only if the court is satisfied that
the accused summoned will in all
likelihood be convicted?

Answer.

117.5. Though under Section
319(4)(b)
Cr.P.C.
the
accused
590 INDIAN LAW REPORTS ALLAHABAD SERIES
subsequently impleaded is to be treated as
if he had been an accused when the Court
initially took cognizance of the offence,
the degree of satisfaction that will be
required for summoning a person under
Section 319 Cr.P.C. would be the same as
for ?framing a charge. The difference in
the degree of satisfaction for summoning
the original accused and a subsequent
accused is on account of the fact that the
trial may have already commenced against
the original accused and it is in the course
of such trial that materials are disclosed
against the newly summoned accused.
Fresh summoning of an accused will
result in delay of the trial - therefore the
degree of satisfaction for summoning the
accused (original and subsequent) has to
be different.

Question (v)- Does the power
under Section 319 Cr.P.C. extend to
persons not named in the FIR or named
in the FIR but not charge-sheeted or who
have been discharged?

Answer

117.6. A person not named in the
FIR or a person though named in the FIR
but has not been charge-sheeted or a
person who has been discharged can be
summoned under Section 319 Cr.P.C.
provided from the evidence it appears that
such person can be tried along with the
accused already facing trial. However, in
so far as an accused who has been
discharged is concerned the requirement
of ?Sections 300 and 398 Cr.P.C. has to be
complied with before he can be summoned
afresh."

20. After aforesaid Constitution
Bench judgement, the issue as involved in
present application again came up for
consideration before Supreme Court in
Babubhai Bhimabhai Bokhiria (Supra),
wherein Court dealt with the issue of
summoning of a non charge sheeted
accused under section 319 Cr.P.C. who was
alleged to be involved in the crime in
question on the basis of dying declaration.
The issue that arose for consideration was
whether on the basis of dying declaration
an inference of guilt could be drawn against
non-charge sheeted accused sought to be
summoned in a case, which arose out of an
F.I.R. registered at Kalambaug Police
Station Porbandar under Sections- 302,
201, 34, 120B, 465, 468, 471 I.P.C. and
Section- 25 of Arms Act. Court took notice
of paragraphs 105 and 106 of the
Constitution Bench judgement in Hardeep
Singh's case (Supra) and deduced as
follows in paragraphs 7, 8, 9, 15, 20, 21
and 22:

"7. Before we proceed to deal
with the evidence against the appellant
and address whether in light of the
evidence available, power under Section
319 of the Code was validly exercised, it
would be expedient to understand the
position of law in this regard. The issue
regarding the scope and extent of powers
of the court to arraign any person as an
accused during the course of inquiry or
trial in exercise of power under Section
319 of the Code has been set at rest by a
Constitution Bench of this Court in
Hardeep Singh v. State of Punjab[(2014) 3
SCC 92 : (2014) 2 SCC (Cri) 86 : (2014) 1
Scale 241] . On a review of the authorities,
this Court summarised the legal position
in the following words: (SCC p. 138, paras
105-06)

"105. Power under Section 319
CrPC
is
a
discretionary
and
an
extraordinary power. It is to be exercised
sparingly and only in those cases where
the circumstances of the case so warrant.
It is not to be exercised because the
Magistrate or the Sessions Judge is of the
10 All. Punit Yadav Vs. State of U.P. & Anr.
591
opinion that some other person may also
be guilty of committing that offence. Only
where strong and cogent evidence occurs
against a person from the evidence led
before the court that such power should be
exercised and not in a casual and cavalier
manner.

106. Thus, we hold that though
only a prima facie case is to be established
from the evidence led before the court, not
necessarily tested on the anvil of crossexamination, it requires much stronger
evidence than mere probability of his
complicity. The test that has to be applied
is one which is more than prima facie case
as exercised at the time of framing of
charge, but short of satisfaction to an
extent
that
the
evidence,
if
goes
unrebutted, would lead to conviction. In
the absence of such satisfaction, the court
should refrain from exercising power
under Section 319 CrPC."

8. Section 319 of the Code
confers power on the trial court to find out
whether a person who ought to have been
added as an accused has erroneously been
omitted or has deliberately been excluded
by the investigating agency and that
satisfaction has to be arrived at on the
basis of the evidence so led during the
trial. On the degree of satisfaction for
invoking power under Section 319 of the
Code, this Court observed that though the
test of prima facie case being made out is
same as that when the cognizance of the
offence is taken and process issued, the
degree of satisfaction under Section 319
of the Code is much higher.

9. Having summarised the law
on the degree of satisfaction required by
the courts to summon an accused to face
trial in exercise of power under Section
319 of the Code, we now proceed to
consider the submissions advanced by the
learned counsel.

15. In the present case, except
the
apprehension
expressed
by
the
deceased, the statement made by him does
not relate to the cause of his death or to
any circumstance of the transaction which
resulted in his death. Once we hold so, the
note does not satisfy the requirement of
Section 32 of the Act. The note, therefore,
in our opinion, is not admissible in
evidence and, thus, cannot be considered
as such to enable exercise of power under
Section 319 of the Code.

20. Now we revert to the
authority of this Court in Rattan Singh
[Rattan Singhv. State of H.P., (1997) 4
SCC 161 : 1997 SCC (Cri) 525] relied on
by Dr Singhvi. In the said case, the
deceased immediately before she was fired
at, spoke out that the accused was
standing nearby with a gun. In a split
second the sound of firearm shot was
heard and in a trice her life snuffed off. In
the said background, this Court held that
the words spoken by the deceased have
connection with the circumstance of
transaction which resulted into death. In
the case in hand, excepting apprehension,
there
is nothing in the note. No
circumstance of any transaction resulting
in the death of the deceased is found in
the note. Hence, this decision in no way
supports the contention of Dr Singhvi.

21. The other evidence sought to
be relied for summoning the appellant is
the alleged conversation between the
appellant and the accused on and
immediately
after
the
day
of
the
occurrence. But, nothing has come during
the course of trial regarding the content of
the conversation and from the call records
alone, the appellant's complicity in the
crime does not surface at all.

22. From what we have observed
above, it is evident that no evidence has at
all come during the trial which shows
592 INDIAN LAW REPORTS ALLAHABAD SERIES
even a prima facie complicity of the
appellant in the crime. In that view of the
matter, the order passed by the trial court
summoning the appellant, as affirmed by
the High Court, cannot be allowed to
stand."

21 Subsequently in Jogendra yadav
(Supra), Court considered the issue as to
whether a non-charge sheeted accused
summoned under section 319 Cr.P.C. can
claim discharge under section 227 Cr.P.C.
Court referred to observations contained in
paragraphs 105 and 106 of the Constitution
Bench judgement in Hardeep Singh's case
in paragraph 10 of the judgement and
delineated the rights of an accused
summoned under section 319 Cr.P.C. to
claim discharge in paragraph-13 of the
judgement, which reads as under:

"13. We are not unmindful of
the fact that the interpretation placed by
us on the scheme of Sections 319 and 227
makes Section 227 unavailable to an
accused who has been added under
Section 319 CrPC. We are of the view, for
the reasons given above, that this must
necessarily be so since a view to the
contrary
would
render
the
exercise
undertaken by a court under Section 319
CrPC, for summoning an accused, on the
basis of a higher standard of proof totally
infructuous and futile if the same court
were to subsequently discharge the same
accused by exercise of the power under
Section 227 CrPC, on the basis of a mere
prima facie view. The exercise of the
power under Section 319 CrPC, must be
placed on a higher pedestal. Needless to
say the accused summoned under Section
319 CrPC, are entitled to invoke remedy
under law against an illegal or improper
exercise of the power under Section 319,
but cannot have the effect of the order
undone by seeking a discharge under
Section 227 CrPC. If allowed to, such an
action of discharge would not be in
accordance with the purpose of Criminal
Procedure Code in enacting Section 319
which empowers the Court to summon a
person for being tried along with the other
accused where it appears from the
evidence that he has committed an
offence."

22.

Inspite
of
above
noted
judgements, issue did not come to rest, but
again cropped up for consideration in
Brijendra Singh (supra) wherein Court
considered the observations made in
paragraphs 8, 12, 13, 19, 105 and 106 of
Constitution Bench judgement in Hardeep
Singh (Supra) and applying the ratio as
mentioned in aforesaid paragraphs widened
the scope of parameters regarding exercise
of jurisdiction under section 319 Cr.P.C. In
this case, Court was examining the
summoning
of
a
non-charge-sheeted
accused in a Sessions Trial under Sections-
147, 148, 149, 323, 448, 302/149 I.P.C. and
Section- 3 and 3(2)(v) of the Scheduled
Castes
and
the
Scheduled
Tribes
(Prevention of Atrocities) Act, 1989. Court
went a step further. A parallel was drawn
with
the
deposition
of
prosecution
witnesses before court and their statements
recorded under section 161 Cr.P.C. to find
out whether something new has come out
in their depositions or not. Having done so,
Court summed up as follows in paragraphs
13, 14, 15:-

"13. In order to answer the
question,
some
of
the
principles
enunciated in Hardeep Singh's case may
be recapitulated: power under Section 319
Cr.P.C. can be exercised by the trial court
at any stage during the trial, i.e., before
the conclusion of trial, to summon any
10 All. Punit Yadav Vs. State of U.P. & Anr.
593
person as an accused and face the trial in
the ongoing case, once the trial court
finds that there is some 'evidence' against
such a person on the basis of which
evidence it can be gathered that he
appears to be guilty of offence. The
'evidence' herein means the material that
is brought before the Court during trial.
Insofar as the material/evidence collected
by the I.O. at the stage of inquiry is
concerned,
it
can
be
utilised
for
corroboration and to support the evidence
recorded by the Court to invoke the power
under Section 319 Cr.P.C.